I. Introduction: History & Background

The Pennsylvania Shield Law and the First Amendment reporter’s privilege provide broad protections to reporters in Pennsylvania who are subpoenaed for their notes, documents and/or testimony. The Shield Law is an absolute privilege that precludes the compelled disclosure of confidential source information. Conversely, the First Amendment reporter’s privilege is a qualified privilege that protects both confidential and non-confidential sources, as well as a reporter’s resource materials and unpublished and even published information. In order to overcome the First Amendment privilege, the person serving the subpoena must prove (1) that the information sought is crucial to the claims at issue, (2) that alternative sources of the information have been exhausted, and (3) that the reporter is the only source of the information.

II. Authority for and source of the right

A. Shield law statute

The Pennsylvania Shield Law, 42 Pa. Cons. Stat. § 5942(a), provides:

No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.

Pennsylvania enacted its Shield Law in 1937. See Act of June 25, 1937, No. 433, 1937 Pa. Laws 2123. The original statute protected people working on behalf of “any newspaper of general circulation” and “any press association for the purpose of gathering, procuring, compiling, editing or publishing news.” Id. The Shield Law has been amended twice since then. First, in 1959, the Law was extended to protect radio and television stations, but only if they maintain copies or transcripts of their broadcasts for at least one year. See Act of Dec. 1, 1959, No. 612, 1959 Pa. Laws 1669-70. Nine years later, the statute was amended again to add magazines to the list of protected entities. See Act of July 31, 1968, No. 255, 1968 Pa. Laws 858-59.

In 1976, the Law was recodified as part of the General Assembly’s recodification of the entire Judicial Code. See Judiciary Act of 1976, No. 142, sec. 2, ch. 59, subch. A, § 5942, 1976 Pa. Laws 586, 725-26. The recodification did not change the substance of the Shield Law.

By enacting the Shield Law, the Pennsylvania General Assembly intended to protect the freedom of the press and the free flow of information. In the Assembly’s deliberations preceding passage of the 1959 amendment, legislators expressed their concern that people would not share news with reporters if “they knew that the sources would be disclosed.” 1959 Legis. J. 4197, 4198 (Oct. 15, 1959) (statement of Rep. Bell). The legislators lauded the Shield Law for eliminating this concern by barring courts and government agencies from requiring reporters to “divulg[e] the information that comes to the hands of newspaper reporters.” Id. (statement of Rep. Steckel).

In 2008, the Pennsylvania Supreme Court reaffirmed the policy basis for the Shield Law, stating that the privilege “was enacted to protect the free flow of information to the news media in their role as information providers to the general public.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 951 (Pa. 2008).

B. State constitutional provision

Pennsylvania’s Constitution has no shield law provision. Although Pennsylvania’s Constitution protects every citizen’s right to “freely speak, write and print on any subject,” Pa. Const. art. I, § 7, Pennsylvania courts have not held that it protects reporters from disclosing their sources. SeeIn reTaylor, 193 A.2d 181, 184 (Pa. 1963).

In 2003, the Pennsylvania Supreme Court “assume[d], without deciding” that Pennsylvania recognizes a First Amendment reporter’s privilege. Commonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003); Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (Bowden court “acknowledg[ed] the Third Circuit’s recognition of a qualified reporter’s privilege”). The Supreme Court recognized that “the Third Circuit has concluded that reporters have a qualified right to refuse to disclose their sources and materials.” Bowden, 838 A.2d at 752; id. at753 n.10 (explaining that “application of Third Circuit precedent in this matter is consistent with our general practice of deferring to the Third Circuit concerning federal questions”). Under Third Circuit precedent, to evaluate the privilege, a court “must balance on one hand the policies which give rise to the privilege and their applicability to the facts at hand against the need for the evidence sought to be obtained in the case at hand.” Id. at 754. The court explained that under the Third Circuit’s test, “the party seeking to overcome the privilege must demonstrate that: (1) it has made an effort to obtain the information from other sources; (2) the information is only accessible through the reporters and their sources; and (3) the information is critical to the case.” Castellani, 956 A.2d at 950 n.11 (Pa. 2008) (citing Bowden, 838 A.2d at 752).

In Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), the Pennsylvania Supreme Court determined that the Shield Law protects only confidential source information, i.e., only information and documents that “could breach the confidentiality of the identity of a human source and thereby threaten the free flow of information from confidential informants to the media.” Id. at 752. In declining to extend the privilege to non-confidential source information, the court explained:

The obvious purpose of the Shield Law is to maintain a free flow of information to members of the news media. We fail to see how this purpose is promoted by protecting from discovery documentary information that was in the possession of the publisher of the defamatory statement where disclosure of this information would not reveal the identity of a confidential media-informant.

Id. at 750.

That decision reflected a shift in the law. Previously, Pennsylvania state and federal courts had held that the Shield Law applies to all unpublished information, except in defamation cases. In re Taylor, 193 A.2d 181, 185 (Pa. 1963); see, e.g., Sprague v. Walter, 543 A.2d 1078, 1083, 1085 (Pa. 1988); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 279 (3d Cir. 1980) (“Inasmuch as Taylor protects all nonpublished portions of a source’s statement, we hold that the outtakes of the Mills interview are protected even though the identity of the primary source of information is known.”). In Hatchard v. Westinghouse Broadcasting Co., 532 A.2d 346 (Pa. 1987), the Pennsylvania Supreme Court held that, “to the extent that the language in In re Taylor may be read as interpreting the Shield Law to protect from discovery, in defamation actions, documentary materials that could not reasonably lead to the discovery of the identity of a confidential media-informant, that [reads] the Shield Law much to broadly.” Id. at 351. The court reasoned that reputation is protected under the Pennsylvania Constitution, and that its decision permitting disclosure of a media defendant’s resource materials in defamation cases (unless the materials disclosed a confidential source) was intended to balance those rights with the privilege articulated in Taylor. Id. Later, in Bowden, the Pennsylvania Supreme Court adopted an “admittedly narrow reading” of Taylor, reasoning that the decision in Taylor protected non-confidential sources because their disclosure “had the potential to reveal sources of information which the [Shield Law] intended to protect,” i.e., confidential sources. 838A.2d at 748. The court ruled that the Shield Law did not protect any other information.

Several years later, in Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. The court declined to read a “crime-fraud” exception into this statute. Id. Castellani involved a defamation case against two newspapers that had published a story alleging that the plaintiffs provided evasive and non-responsive answers to a grand jury. Id. at 940. The plaintiffs sought to identify the newspapers’ source, arguing that the act of disclosing information regarding the proceedings before the grand jury was a criminal act and the reporter’s communications with her source should not be privileged. The court rejected that argument as well as the plaintiffs’ attempt to analogize the protections afforded under the Shield Law to the attorney-client privilege, which provides a crime-fraud exception. Id. at 945 (citing Nadler v. Warner Co., 321 Pa. 139 (Pa. 1936). As the court explained, in the attorney-client context, a crime-fraud exception is justified because the client, as holder and beneficiary of the attorney-client privilege, should not be allowed to benefit from abusing the privilege in furtherance of a crime or fraud. Castellani, 956 A.2d at 951. Conversely, no such similar purpose is served by creating a crime-fraud exception to the Shield Law; while the newspaper is the holder of the privilege, it is the public who is the beneficiary. Id. Furthermore, “the news media [has] a right to report news, regardless of how the information was received.” Id. at 952.

2. First Amendment

In following the Third Circuit’s decisions, Pennsylvania trial and appellate courts have espoused a strong interpretation of the First Amendment reporter’s privilege. The privilege cannot be overcome unless a court concludes, in articulated findings, that the party seeking the information has established that (1) the information sought is “necessary” and “crucial” to its case; (2) attempts to obtain the information from other sources have been exhausted; and (3) the only source of the information is the reporter. SeeDavis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). In one instance, the First Amendment privilege was applied even to published information, seeMcMenamin, 590 A.2d at 811; see alsoSiroky v. Allegheny Cty., 2018 WL 1465759, at *3 (W.D. Pa. Mar. 26, 2018) (holding that qualified reporter’s privilege applied to reporter’s testimony, interview notes, and reporting material related to published story).

In 2003, the Pennsylvania Supreme Court “assume[d] without deciding” that Pennsylvania recognizes a First Amendment reporter’s privilege in accordance with Third Circuit precedent. SeeCommonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003) (explaining that “application of Third Circuit precedent in this matter is consistent with our general practice of deferring to the Third Circuit concerning federal questions”); see also Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (Bowden court “acknowledg[ed] the Third Circuit’s recognition of a qualified reporter’s privilege”).

C. Type of case

1. Civil

Although the First Amendment privilege is applicable in both criminal and civil cases, Pennsylvania courts are likely to follow Third Circuit decisions holding that the privilege is stronger in civil cases. As the Pennsylvania Supreme Court noted in the Bowden decision: “The Third Circuit has . . . stated that the privilege assumes greater importance in civil than in criminal cases, as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003). But, even in criminal cases, the privilege remains strong. See, e.g., United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189 (3d Cir. 1981); In re Williams, 766 F. Supp. 358, 359 (W.D. Pa. 1991), aff’d,963 F.2d 567 (3d Cir. 1992).

2. Criminal

Pennsylvania courts are likely to follow Third Circuit decisions holding that the privilege is weaker in criminal cases than in civil cases. As the Pennsylvania Supreme Court noted in the Bowden decision: “The Third Circuit has stated that the privilege assumes a greater importance in civil than in criminal cases, as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003) (ruling privilege was overcome in case involving jailhouse interviews with defendant facing homicide charges).

3. Grand jury

The Shield Law and First Amendment privilege both apply to grand jury proceedings.

1. Shield Law

The Shield Law expressly applies “in any legal proceeding, trial or investigation before any government unit.” 42 Pa. Cons. Stat. § 5942(a). Thus, by its own terms, the Shield Law applies to grand jury proceedings. SeeCastellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008); In re Taylor, 193 A.2d 181 (Pa. 1963) (rejecting argument that Shield Law should not protect communications between reporter and source that violated the Grand Jury Act).

In Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. In Castellani, the court addressed a defamation case against two newspapers that had published a story alleging that the plaintiffs provided evasive and non-responsive answers to a grand jury. Id. at 939-40. The plaintiffs sought to identify the source, arguing that the act of disclosing information regarding the proceedings before the grand jury was a criminal act and the reporter’s communications with her source should not be privileged. The court held that the source’s identity was protected under the Shield Law even though the source’s communications violated the requirement of grand jury secrecy.

In a footnote, however, the court left open the possibility that its holding might be different in the context of a criminal investigation of a grand jury leak. The court speculated that “[w]ere a situation to arise . . . where the Commonwealth sought a reporter’s evidence concerning the source of a grand jury leak in a criminal investigation or prosecution of that leak, then the Shield Law and the secrecy provision of the Grand Jury Act would be more directly in conflict.” Castellani, 956 A.2d at 953 n.14; see also In re Dauphin Cty. Fourth Investigating Grand Jury, 19 A.3d 491, 509 n.6 (Pa. 2011) (noting in discussion of investigation into alleged grand jury leaks that “we would be remiss if we did not recognize that the improper disclosure of grand jury testimony constitutes criminal conduct and that by seeking protected grand jury information, members of the free press are encouraging, if not abetting, conduct that is criminal in nature”). That dicta, however, is contrary to long-standing precedent and the explicit text of the Shield Law statute.

2. First Amendment privilege

Pennsylvania courts apply Third Circuit precedent concerning the scope of the First Amendment privilege, seeCommonwealth v. Bowden, 838 A.2d 740, 752, 753 n.10 (Pa. 2003), and federal courts in the Third Circuit have applied the First Amendment privilege in the context of grand jury proceedings, see Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979). For example, the district court in In re Williams, 766 F. Supp. 358, 359 (W.D. Pa. 1991), aff’d,963 F.2d 567 (3d Cir. 1992), quashed a grand jury subpoena issued to news outlets that had received confidential FBI files related to a criminal trial. The government sought the production of the physical documents provided to the news media, as well as the envelopes, for forensic examination as part of an attempt to uncover the source of the leak. The court rejected the newspapers’ argument that they enjoyed an absolute privilege from disclosing this material. Id. at 369 (“[T]his Court is compelled to conclude the competing interests of the Government are of such a vital concern that they must negate the finding of an absolute privilege here.”). The court nevertheless applied the three-part test for the First Amendment privilege and ruled that the government could not overcome the privilege. Id. The court held that the government failed to demonstrate that it made any effort to obtain the sought-after information from alternative sources, or that its only access to the information was through the reporters.

The Shield Law and First Amendment privilege were both raised in connection with a grand jury proceeding in In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006). In that case, a newspaper company’s computer workstations and hard drives were subpoenaed by the Attorney General’s Office in the course of a statewide grand jury investigation. Denying the paper’s motion to quash, the trial court permitted the Attorney General to search the hard drives’ internet history and cached content, and further imposed a sanction of $1,000 per day when the paper refused to comply with the trial court’s order. On appeal, the newspaper argued, among other things, that (1) the subpoena violated the First Amendment Privacy Protection Act, 40 U.S.C. §§ 2000aa-2000aa-12; (2) the subpoena sought confidential source information on the hard drives, which was absolutely protected from disclosure under the Pennsylvania Shield Law; and (3) the subpoena violated the First Amendment reporter’s privilege. Without specifically addressing any of these arguments, the Pennsylvania Supreme Court reversed the trial court’s order based on “a careful balancing of the respective interests involved.” Id.at 514. Noting the “potential chilling effect” of the trial court’s order, the court held that it was overbroad, that “measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth,” and that “this particular method of disclosure is unduly intrusive.” Id. at 513-14. As the court noted, the Attorney General’s office had, in effect, demanded that the “‘filing cabinets’ of the newspapers [be] transferred to the custody and control of the executive branch of the government.” Id. at 514. The court said that “[w]e expressly do not foreclose . . . the utilization by the supervising judge of a neutral, court-appointed expert to accomplish the forensic analysis and report specific, relevant results.” Id. at 514 n.5.It furthernoted, ignoring the provisions of the Federal Privacy Protection Act, that “any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause.” Id. at 514. Significantly, the court also held that the newspaper company was entitled to a copy of the sealed Notice filed by the Office of Attorney General when it submitted the matter for investigation by the grand jury. The court held that the company should receive the Notice, on a confidential basis, so that it could determine whether it had proper grounds to challenge the investigation. Id.at 516.

D. Information and/or identity of source

The Pennsylvania Shield Law specifically protects the identity of a confidential “source of . . . information.” 42 Pa. Cons. Stat. § 5942(a); In re Taylor, 193 A.2d 181 (Pa. 1963). The Shield Law also protects information that might “reasonably lead to the discovery of the identity” of the source of information. Commonwealth v Bowden, 838 A.2d 740, 750-51 (Pa. 2003); see also Castellani v. Scranton Times, L.P., 956 A.2d 937, 954 (Pa. 2008) (explaining that the law protects “any information which could expose the source’s identity”).

2. First Amendment privilege

The First Amendment privilege protects the identity of a source as well as information that may reasonably lead to the discovery of the identity of a source of information. Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997).

In Glanton, township commissioners subpoenaed The Philadelphia Inquirer for testimony and documents relating to an Inquirer article that quoted a defendant as accusing the commissioners of, among other things, “thinly disguised racism.” Glanton, 705 A.2d at 881-82. The commissioners sought the reporter’s notes, other unpublished materials as well as any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendants were trustees, and about which the dispute emanated – in the five years before the article at issue was published. Id. at 883. On appeal, the Pennsylvania Superior Court ordered the reporter to testify and produce the notes and materials used in preparing the article. The court reasoned that (1) the reporter’s notes were necessary to determine whether the potentially defamatory statements, which the defendant in question denied making, referred to the plaintiffs (or to someone else); (2) the reporter’s notes were the only memorialization of the interview; and (3) the reporter and one of the defendants were the only parties to the interview. Id. at 885. The Superior Court also held, however, that the First Amendment reporter’s privilege barred the plaintiff from obtaining the other information it sought from the newspaper – that is, the notes from any of the interviews the newspaper’s reporters conducted with the defendant in question and any materials received by the newspaper in preparing any article about the Barnes Foundation in the five years before the article was published. Id. at 886. The Superior Court reasoned that such materials were not crucial to the plaintiffs’ case. Id.

In McMenamin, the plaintiff sought to compel a reporter’s testimony regarding the accuracy of certain statements recorded by videotape at a press conference and later used as part of a news report. 590 A.2d at 811. The court held that the First Amendment privilege protected the reporter against testifying because there was no evidence that the same information could not have been obtained from others present at the press conference. Id.

In Bowden, the trial court ordered two reporters to disclose to the Philadelphia District Attorney’s Office verbatim, post-indictment, pre-trial statements about the shooting at issue that a homicide defendant made to reporters in jailhouse interviews. The Pennsylvania Supreme Court held that the District Attorney’s Office had satisfied the three part test required to overcome that privilege, as articulated by the Third Circuit Court of Appeals in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139 (3d Cir. 1980); and United States v. Criden, 633 F.2d 346 (3d Cir. 1980). The Pennsylvania Supreme Court therefore affirmed the order of the trial court requiring the reporters to testify about the statements. The court reasoned that the reporters were the only sources of the precise statements: “[b]y their very nature, these [verbatim and substantially verbatim] statements are not obtainable from any other source. They are unique bits of evidence that are frozen at a particular place and time.” 838 A.2d at 756. The court also ruled that the statements were “crucial” to the criminal prosecution of the defendant, whose “defense at trial rested entirely on his claim” that he acted in “self-defense.” Id. at 757. The court concluded that any of the defendant’s statements about the shooting were highly relevant and important to his “mental state” and self-defense claim, either as direct evidence or impeachment evidence. Id. Significantly, however, the court in Bowden did not require the production of the reporters’ notes; the court only affirmed the trial court’s order requiring the reporters to provide, either orally or in writing, the statements made by the defendant. Id. In reaching this result, the Pennsylvania Supreme Court echoed the Third Circuit’s guidance that “it is important for courts faced with privilege questions to consider whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production.” Id. at 754.

The First Amendment privilege applies to all information, including published information. The privilege protects reporters from having to testify regarding or verify the accuracy of published material. McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991) (where, based on First Amendment, court refused to compel reporter’s testimony to verify that candidate made statements at press conference that were part of a television news report), aff’d without op., 590 A.2d 753 (Pa. 1991); see alsoCommonwealth v. Farley, 27 Med. L. Rptr. 1544 (Jefferson Cty. C.C.P. Jan. 12, 1999) (quashing subpoena and holding that First Amendment reporter’s privilege applies to published material sought by the Commonwealth). Elsewhere, however, the Pennsylvania Superior Court has stated, without citation to authority, that “[p]ublished materials are neither protected by the Shield Law nor privileged under the First Amendment.” Davis v. Glanton, 705 A.2d 879, 887 (Pa. Super. 1997) (actual published articles not protected by First Amendment privilege).

G. Reporter's personal observations

There are no Pennsylvania appellate court decisions addressing whether the Shield Law or the First Amendment privilege applies to a reporter’s personal observations of an event at issue in the case. Several trial court decisions have touched on this issue. In Commonwealth v. Linderman, 1992 WL 563407 (Chester Cty. C.C.P. Sept. 4, 1992), the trial court found that the Shield Law does not protect unpublished photographs taken by a media photographer where the photographs were taken in public, of a scene in plain view, and thus served only as a factual record of an event. Id. at *2. Another trial court, however, found that the First Amendment privilege applies to such photographs and suggested that both the Shield Law and the First Amendment privilege could protect against disclosure if the photographs are sources of information rather than records of a public event. Shetler v. Zeger, 1989 WL 234087, at *5-6 (Franklin Cty. C.C.P. June 1, 1989). Similarly, in McMenamin v. Tartaglione, 590 A.2d 802 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991), the Pennsylvania Commonwealth Court held that a reporter would not be compelled to testify at a civil trial regarding his or her observations during a press conference. The plaintiff in that case sought a declaration prohibiting the former Philadelphia District Attorney, Ronald Castille, from running for Mayor of Philadelphia. The plaintiff sought to compel a newspaper reporter to testify about the accuracy of certain statements allegedly made by Mr. Castille, during a press conference. The court determined that the testimony was not protected under the Pennsylvania Shield Law because the plaintiff was not seeking disclosure of the identity of a confidential source. Nevertheless, the court applied the three-part test for the reporter’s privilege and concluded that the plaintiff failed to show that the information was unobtainable from a source other than the journalist. Id. at 811-12.

H. Media as a party

1. Shield Law

The Shield Law applies without regard to whether the media is a party in the case. See, e.g., Sprague v. Walter, 543 A.2d 1078, 1081-82 (Pa. 1988).

2. First Amendment privilege

Pennsylvania courts apply the First Amendment reporter’s privilege, regardless of whether the media is a party. SeeDavis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997) (the balancing test for the First Amendment reporter’s privilege must be applied on a case-by-case basis regardless of whether media is a party); Melvin v. Doe, 49 Pa. D. & C.4th 449, 477 (Allegheny Cty. C.C.P. Nov. 15, 2000) (Wettick, J.) (suggesting that when media entity is a party, Pennsylvania courts apply same First Amendment privilege analysis as in other cases). As the Pennsylvania Supreme Court has noted, “the status of the media member as a party or non-party witness is relevant to the balancing inquiry, explaining that it should be more difficult to compel production from a non-party witness who has no personal interest in the matter.” Commonwealth v. Bowden, 838 A.2d 740, 754-55 (2003) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979)).

I. Defamation actions

In general, there is no “libel exception” in Pennsylvania under either the Shield Law or First Amendment privilege. However, the fact that a reporter or media entity is a defendant in a defamation action is considered in assessing whether the requested information is protected by the First Amendment privilege.

1. Shield Law

The leading Pennsylvania cases addressing the scope of the Shield Law in defamation cases are Hatchard, Sprague, Castellani,and Glanton.

The Pennsylvania Supreme Court in Hatchard considered two libel actions against a local television station that allegedly broadcast defamatory material about the plaintiffs. In one case, the plaintiff attempted to discover non-broadcast “out-takes” and in the other, the plaintiff sought documents available to the station at the time it broadcast its report. Hatchard v. Westinghouse Broad. Co., 532 A.2d 346, 347 (Pa. 1987). The Pennsylvania Supreme Court held the plaintiffs were entitled to the discovery. The court reasoned that the constitutional right of reputation would be compromised if a defendant reporter were permitted to assert the Shield Law with respect to all unpublished information in a defamation case. Id. at 349, 351. The court also held that the plaintiff could not obtain any outtakes that disclosed, or reasonably could lead to the disclosure of, confidential sources. Id. at 351.

In Castellani, a defamation case arising from a news report about the plaintiffs’ testimony before a grand jury, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008). The court declined to read a “crime-fraud” exception into the statute, explaining that “the news media [has] a right to report news, regardless of how the information was received.” Id. at 952.

When a media defendant invokes the Shield law’s protection in defamation cases, no adverse inference may be drawn, but neither can an inference of reliability or accuracy of information be drawn from the existence of an unidentified source. SeeSprague v. Walter, 543 A.2d 1078, 1086 (Pa. 1988). As the Pennsylvania Supreme Court explained:

[T]he trial court in its instructions should make clear for the jury, (a) that the burden of proof remains upon the plaintiff throughout the trial; (b) that, if the Shield Law is invoked by the defendant to avoid disclosing a source, no inference either favorable or adverse may be drawn from the act of invoking that privilege as to the reliability of the unidentified source or as to the accuracy of the information supplied; and, (c) that the jury is to consider any evidence and/or arguments made by plaintiff and defendant as to the reliability of the undisclosed source and as to the accuracy of the information supplied.

Id. (citation omitted).

The Pennsylvania Superior Court has considered the Shield Law’s protection in a defamation action where the media entity is not a party. In Glanton, the plaintiffs subpoenaed The Philadelphia Inquirer for testimony and documents relating to an article that quoted one of the defendants as accusing the plaintiffs of, among other things, “thinly disguised racism.” Davis v. Glanton, 705 A.2d 879, 881-82 (Pa. Super. 1997). The plaintiffs sought the reporter’s notes, other unpublished materials, and any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendant was a trustee, and about which the dispute emanated – in the five years before the article at issue was published. Id. at 883. The Superior Court held that the Shield Law did not protect the subpoenaed notes and unpublished material to the extent they could not “reasonably lead to the discovery of the identity of a confidential media-informant.” Id. 885. Relying on the heightened burden of plaintiffs in libel cases, the court held that there was “no reason . . . why the rationale of Hatchard is not equally applicable in cases where materials relevant to plaintiff’s burden are in the possession of a media entity which is not a party.” Id.

2. First Amendment privilege

In defamation cases, Pennsylvania courts apply the same analysis with respect to the First Amendment reporter’s privilege as in other contexts. The privilege, however, might be slightly weaker when the media is a party. As the Pennsylvania Supreme Court has noted, “the status of the media member as a party or non-party witness is relevant to the balancing inquiry,” explaining that Third Circuit precedent suggests “it should be more difficult to compel production from a non-party witness who has no personal interest in the matter.” Commonwealth v. Bowden, 576 Pa. 151, 175, 838 A.2d 740, 755 (2003) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979).

Glanton was also a libel action, but the reporter’s privilege issues arose in the context of third-party discovery served on The Philadelphia Inquirer. The plaintiffs subpoenaed The Inquirer for testimony and documents relating to an article that quoted one of the defendants as accusing the plaintiffs of, among other things, “thinly disguised racism.” 705 A.2d at 881-82. The commissioners sought the reporter’s notes, other unpublished materials, and any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendant was a trustee, and about which the dispute emanated – in the five years before the article at issue was published. Seeid. at 883. The Superior Court held that the plaintiffs overcame the privilege with respect to the reporter’s notes from the article at issue because (1) the notes were necessary to determine whether the potentially defamatory statements, which the defendant denied making, referred to the plaintiffs (or to someone else); (2) the reporter’s notes were the only memorialization of the interview; and (3) the reporter and one of the defendants were the only parties to the interview. Seeid. at 885. The Superior Court held that the First Amendment reporter’s privilege barred the plaintiffs from obtaining the other information they sought from the newspaper – that is, notes from any interviews with the defendants and any materials received by the newspaper in preparing other articles about the defendants – because such materials were not crucial to the plaintiffs’ case. Seeid. As the court explained, “plaintiffs must do more than demonstrate a mere possibility that a media entity possesses relevant information in order to overcome the First Amendment privilege.” Id. at 886.

IV. Who is covered

Pennsylvania’s Shield Law protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a). In Javens v. Doe, 45 Med. L. Rep. 1808, 1811 (Beaver Cty. C.C.P. Mar. 7, 2017), a trial court held that the owner/publisher of a website that posts news is covered by the Shield Law. The court explained that because the website “is available to anyone who wishes to access” it, the site “constitutes a newspaper of general circulation.” Id. The court continued:

The fact that the content is published online rather than in a traditional format is inconsequential considering the clear intent of the statute. There is no indication in the language of the Shield Law that its provisions are limited to publications printed in a traditional “hard copy” print format. Further, it is apparent that [the owner/ publisher] operates the website for the purpose of gathering, compiling and publishing news.

Id.

In Pennsylvania, the First Amendment reporter’s privilege has been extended to members of the “news media,” including “reporters.” Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997). There are no Pennsylvania cases that discuss the definitions of “news media” or “reporter,” for the purposes of the privilege. The Pennsylvania Supreme Court has suggested that the state’s courts will follow Third Circuit precedent in addressing the scope of the reporter’s privilege. Commonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003); Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008). The Third Circuit has held that a person is protected by the privilege if “at the beginning of the news-gathering process,” she has “the intention of disseminating her information to the public” and “she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press,” Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125, 128-29 (3d Cir. 1998).

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The Pennsylvania Shield Law and First Amendment reporter’s privilege apply to reporters. See, e.g., Davis v. Glanton, 705 A.2d 879 (Pa. Super. 1997). The Shield Law protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a).

There are no Pennsylvania cases that define who is covered by the First Amendment privilege. The Third Circuit, however, addressed the issue of who constitutes a “journalist” for purposes of invoking the privilege in Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125 (3d Cir. 1998). In that case, the witness who had been subpoenaed was employed by a wrestling company to disseminate fictional information regarding wrestling characters. The Third Circuit adopted the reasoning of the Second Circuit Court of Appeals, which articulated the relevant factors to determine when an individual was entitled to invoke the qualified First Amendment privilege:

First, the court recognized that the process of newsgathering is a protected, albeit qualified, right under the First Amendment. This right emanates from the strong public policy supporting the unfettered communication of information by a journalist to the public. Second, the court required a true journalist, at the beginning of the news-gathering process, to have the intention of disseminating her information to the public. Third, the court stated that an individual may successfully claim the journalist's privilege if she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and her sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be protected.

Id. at 128-29 (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). Applying this reasoning, the court in In re Madden held that the non-party witness claiming privilege was not a journalist. The court found that “[b]y his own admission, he is an entertainer, not a reporter, disseminating hype, not news.” Id. at 130. His “reporting” regarding wrestling events constituted little more than creative fiction about admittedly fictional wrestling characters – he “uncovered no story on his own nor did he independently investigate any of the information given to him by [the wrestling company’s] executives.” Id. His primary goal was advertisement and entertainment, not gathering news or disseminating information. Id.

b. Editor

The Pennsylvania Shield Law and First Amendment reporter’s privilege apply to editors. The Shield Law protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a). In In re Taylor, the Pennsylvania Supreme Court held that the Shield Law protected the president and general manager of a newspaper and the editor of another newspaper, all of whom were subpoenaed by an investigating grand jury. SeeIn re Taylor, 193 A.2d 181, 182, 186 (Pa. 1963).

There are no Pennsylvania cases that define the term “editor” for the purposes of the First Amendment privilege. The Third Circuit, however, addressed the issue of who constitutes a “journalist” for purposes of invoking the privilege in Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125 (3d Cir. 1998). In that case, the witness who had been subpoenaed was employed by a wrestling company to disseminate fictional information regarding wrestling characters. The Third Circuit adopted the reasoning of the Second Circuit Court of Appeals, which articulated the relevant factors to determine when an individual was entitled to invoke the qualified First Amendment privilege:

First, the court recognized that the process of newsgathering is a protected, albeit qualified, right under the First Amendment. This right emanates from the strong public policy supporting the unfettered communication of information by a journalist to the public. Second, the court required a true journalist, at the beginning of the news-gathering process, to have the intention of disseminating her information to the public. Third, the court stated that an individual may successfully claim the journalist's privilege if she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and her sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be protected.

Id. at 128-29 (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). Applying this reasoning, the court in In re Madden held that the non-party witness claiming privilege was not a journalist. The court found that “[b]y his own admission, he is an entertainer, not a reporter, disseminating hype, not news.” Id. at 130. His “reporting” regarding wrestling events constituted little more than creative fiction about admittedly fictional wrestling characters – he “uncovered no story on his own nor did he independently investigate any of the information given to him by [the wrestling company’s] executives.” Id. His primary goal was advertisement and entertainment, not gathering news or disseminating information. Id.

c. News

The Pennsylvania Shield Law is expressly limited to those persons “gathering, procuring, compiling, editing or publishing news.” There is no case law addressing this issue under the First Amendment reporter’s privilege. And, there is no Pennsylvania statutory or case law that expressly defines what is considered “news” for the purposes of either the Shield Law or the First Amendment reporter’s privilege.

d. Photo journalist

The Pennsylvania Shield Law applies to photojournalists, as it protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a). But, the law only protects confidential sources and information that might disclose the identity of a confidential source. See Shetler v. Zeger, 1989 WL 234087, at *5-6 (Franklin Cty. C.C.P. June 1, 1989) (implying Shield Law applies to photojournalists but holding that no confidential source was implicated in the case).

Pennsylvania trial courts have held that photographers are protected by the First Amendment privilege, although their photos might not be protected if they are merely records of events similar to personal observations of objects in plain view in public spaces and if the party seeking the information otherwise overcomes the privilege. See In re Pittsburgh Citizen Police Review Bd., 29 Media L. Rep. 1156, 1158 (Allegheny Cty. C.C.P. Oct. 12, 2000) (newspaper photographs taken in course of newsgathering activity protected by qualified privilege); Shetler, 1989 WL 234087, at *6. But seeCommonwealth v. Linderman, 1992 WL 563407, at *2 (Chester Cty. C.C.P. Sept. 4, 1992) (holding, pre-Bowden, that photographer was not protected by a First Amendment privilege because “the long and short of the argument regarding a constitutional privilege is that there is none”); Commonwealth v. Ruch, 28 Pa. D. & C.3d 488, 492, 1984 WL 605, at *2 (Montgomery Cty. C.C.P. Jan. 12, 1984) (photographs of object in plain view in or from public areas not protected).

e. News organization/medium

The Pennsylvania Shield Law applies to media organizations. SeeLAL v. CBS, Inc., 726 F.2d 97, 100 (3d Cir. 1984) (television station); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 278-79 (3d Cir. 1980) (television station); Davis v. Glanton, 705 A.2d 879 (Pa. Super. 1997) (newspaper). The Shield Law provides that its protections apply to radio or television stations only if those stations “maintain[] and keep[] open for inspection, for a period of at least one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.” 42 Pa. Cons. Stat. § 5942(b).

2. Others, including non-traditional news gatherers

A Pennsylvania trial court has held that the owner/publisher of a website that posts news is covered by the Shield Law. Javens v. Doe, 45 Med. L. Rep. 1808, 1811 (Beaver Cty. C.C.P. Mar. 7, 2017). The court explained that because the website “is available to anyone who wishes to access” it, the site “constitutes a newspaper of general circulation.” Id. The court continued:

The fact that the content is published online rather than in a traditional format is inconsequential considering the clear intent of the statute. There is no indication in the language of the Shield Law that its provisions are limited to publications printed in a traditional “hard copy” print format. Further, it is apparent that [the owner/ publisher] operates the website for the purpose of gathering, compiling and publishing news.

No Pennsylvania cases address the extent to which the Shield Law or the First Amendment reporter’s privilege protects non-traditional news gatherers such as academic researchers. The Third Circuit, however, addressed the issue of who constitutes a “journalist” for purposes of invoking the privilege in Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125 (3d Cir. 1998). In that case, the witness who had been subpoenaed was employed by a wrestling company to disseminate fictional information regarding wrestling characters. The Third Circuit adopted the reasoning of the Second Circuit Court of Appeals, which articulated the relevant factors to determine when an individual was entitled to invoke the qualified First Amendment privilege:

First, the court recognized that the process of newsgathering is a protected, albeit qualified, right under the First Amendment. This right emanates from the strong public policy supporting the unfettered communication of information by a journalist to the public. Second, the court required a true journalist, at the beginning of the news-gathering process, to have the intention of disseminating her information to the public. Third, the court stated that an individual may successfully claim the journalist's privilege if she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and her sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be protected.

Id. at 128-29 (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). Applying this reasoning, the court in In re Madden held that the non-party witness claiming privilege was not a journalist. The court found that “[b]y his own admission, he is an entertainer, not a reporter, disseminating hype, not news.” Id. at 130. His “reporting” regarding wrestling events constituted little more than creative fiction about admittedly fictional wrestling characters – he “uncovered no story on his own nor did he independently investigate any of the information given to him by [the wrestling company’s] executives.” Id. His primary goal was advertisement and entertainment, not gathering news or disseminating information. Id.

B. Whose privilege is it?

1. Shield Law

In holding that only a reporter could waive the privilege, the Pennsylvania Supreme Court appears to have assumed that the Shield Law privilege belongs to the reporter, not the source. In re Taylor, 193 A.2d 181, 185 (Pa. 1963).

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no requirements under either the Shield Law or the First Amendment privilege as to when a subpoena must be served on a member of the news media. All witnesses are required to be served a reasonable time before a subpoena’s return date. Pa. R.C.P. No. 234.1;see alsoCommonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012).

3. Filing of affidavit

4. Judicial approval

There is no requirement under either the Shield Law or the First Amendment privilege that the subpoenaing party obtain court approval before serving a subpoena on a reporter. Under the Pennsylvania Rules of Civil Procedure, however, a party serving a subpoena duces tecum must give twenty days’ notice to the other parties before serving a third-party subpoena; if the other parties object, the proponent of the subpoena must seek court approval before serving the subpoena.

5. Service of police or other administrative subpoenas

There are numerous provisions, under Pennsylvania law, which provide administrative bodies with the power to issue subpoenas. For example, if a reporter receives a subpoena under the following provisions, the reporter will need to invoke the Shield Law and/or First Amendment privilege:

A fire marshal or deputy fire marshal has the power to compel, by subpoena, the examination of any person or the production of documents in relation to any fire. 16 Pa. Stat. § 6106. If a person refuses to appear or to produce documents, the marshal may, upon approval of the superintendent of county police and an authorized representative of the district attorney’s office, jail the person until he or she agrees to comply with the subpoena. Id. The mayor of the City of Philadelphia has similar authority. 53 Pa. Stat. § 16599.

The Office of Victims’ Services, which is responsible for administering claims for compensation by victims of crime, has the power to subpoena testimony and the production of evidence. 18 Pa. Stat. § 11.312.

Housing authority members (administrators appointed by certain municipalities and counties) have the power to subpoena testimony and the production of evidence and to apply to the court for a finding of contempt for any failure to comply with a subpoena. 35 Pa. Stat. § 1550.

The Attorney General has the authority to subpoena testimony and the production of evidence and to apply to the court for a finding of contempt for any failure to comply with a subpoena. See, e.g., 35 Pa. Stat. § 7131.503; 10 Pa. Stat. § 162.16.

The city councils in certain cities may subpoena appearance and testimony in conjunction with an investigation of allegedly negligent or improper official conduct of city officers. 53 Pa. Stat. § 22237.

B. How to Quash

1. Contact other party first

Although neither the Shield Law nor the First Amendment privilege requires that the subpoenaing party be contacted prior to filing a motion to quash, it is a good idea. Many subpoenas are withdrawn or modified as a result of such calls.

2. Filing an objection or a notice of intent

The Pennsylvania Rules of Civil Procedure provide that any party may “object to [a] subpoena [for documents] by filing of record written objections and serving a copy of the objections upon every other party to the action.” Pa. R.C.P. No. 4009.21(c). A witness, however, must move for a protective order or to quash the subpoena. Pennsylvania does not require the filing of a notice of intent before filing a motion to quash. In some counties, there may be general rules regarding discovery or trial motions. For example, in Philadelphia County, a party filing a motion to quash a discovery subpoena must certify that he or she made an effort to resolve the dispute without court intervention.

3. File a motion to quash

a. Which court?

b. Motion to compel

Because a subpoena is a court order, it is not advised that the news media disregard the subpoena’s return date and simply register an objection with the subpoenaing party. If the news media is unable to get the subpoenaing party to withdraw the subpoena, the news media should promptly file a motion to quash.

c. Timing

The news media should file a motion to quash as soon as possible. The filing of a motion to quash does not stay the news media’s obligation to comply with the subpoena, see, e.g., Pa. R. Civ. P. 4013, although such a motion usually has that effect as a practical matter.

d. Language

Although this largely depends on the applicable local court rules, the motion should briefly give the background of the issue, state the argument and relief requested, and include a proposed order and, depending on local practice, a memorandum of law. Because trial court judges are usually unfamiliar with the First Amendment reporter’s privilege and Shield Law, it is important to educate the court as to their nature, scope, and underlying public policies.

e. Additional material

Pennsylvania courts are not unreceptive to additional materials. If additional materials support a reporter’s motion to quash, such as materials showing other available sources of information or establishing that the testimony is not crucial, then they should be filed in conjunction with the motion.

4. In camera review

a. Necessity

Neither the Pennsylvania Shield Law nor the First Amendment privilege direct, require, or suggest that the court conduct an incamera review of materials. The Third Circuit, however, has affirmed a district court’s order compelling in camera review of a reporter’s notes in a criminal trial when the defendant’s subpoena complied with the Federal Rules of Criminal Procedure and the information was not available from another source. SeeUnited States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980).

The Pennsylvania Supreme Court criticized the “refusal” of two reporters to produce subpoenaed information for in camera review in Commonwealth v. Bowden, 838 A.2d 740, 758 n.13 (Pa. 2003) (“Absent disclosure or in camera review, there was simply no way” for trial court to determine whether subpoenaed information was “crucial” to prosecution.).

b. Consequences of consent

There are no decisions specifically addressing the impact of refusing to consent to an incamera review. In Commonwealth v. Bowden, the Pennsylvania Supreme Court criticized the reporters’ refusal to provide the subpoenaed information for in camera review. 838 A.2d 758 n.13 (Pa. 2003).

c. Consequences of refusing

5. Briefing schedule

6. Amicus briefs

There is no Pennsylvania civil or criminal rule of procedure concerning the filing of amici curiae briefs at the trial court level. Counsel should consult the local rules for any limitations.

Pennsylvania appellate courts generally accept amicus briefs. Pennsylvania Rule of Appellate Procedure 531 provides that any non-party may submit an amicus curiae brief, without permission of the court, by the deadline for submission of the brief by the party whose position the amicus curiae supports. Oral argument by amici is by permission only. Pa. R. App. P. 531(b).

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The Pennsylvania Shield Law provides an absolute privilege against compelled disclosure of confidential source information. There is no case law specifically addressing who maintains the burden of establishing the applicability of the Shield Law to the subpoenaed information.

With respect to the First Amendment privilege, the party seeking disclosure bears the burden of proof. Commonwealth v. Bowden, 838 A.2d 740, 743 (Pa. 2003). The party seeking disclosure must do “more than demonstrate a mere possibility that a media entity possesses relevant information.” Davis v. Glanton, 705 A.2d 879, 886 (Pa. Super. 1997). It must meet the three-part test, showing that “(1) it has made an effort to obtain the information from other sources; (2) the information is only accessible through the reporters and their sources; and (3) the information is critical to the case.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (citing Bowden, 838 A.2d at 752). Courts can compel disclosure only if they are able to make “specific findings of necessity.” Glanton, 705 A.2d at 886; see alsoUnited States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980).

B. Elements

Since the Pennsylvania Shield Law provides an absolute privilege against compelled disclosure of confidential source information, the sole issue is whether the subpoenaed information could reasonably lead to the disclosure of the identity of a confidential source. SeeCommonwealth v. Bowden, 838 A.2d 740, 755 (Pa. 2003).

With respect to the First Amendment privilege, the Pennsylvania Supreme Court has described the elements necessary for a party to overcome the privilege as follows:

Second, the party “must demonstrate that the only access to the information sought is through the journalist and [his or] her sources.” Criden, 633 F.2d at 359; seeRiley, 612 F.2d at 716 (stating that a showing is required as to the lack of alternative sources); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997)(same); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991)(same).

Third and finally, the party “must persuade the court that the information sought is crucial to [its] claim.” Criden, 633 F.2d at 359; seeCuthbertson II, 651 F.2d at 196 (same); see alsoRiley, 612 F.2d at 716 (“the materiality, relevance and necessity of the information sought must be shown”), 717 (information must be crucial information necessary for the development of the case; material sought must ‘provide a source of crucial information going to the heart of the [claim]’ (citation omitted; alteration in original)); Glanton, 705 A.2d at 885 (stating that party must demonstrate that information is crucial to its case); McMenamin, 590 A.2d at 811 (same).

Bowden, 838 A.2d at 755.

In Bowden, the Pennsylvania Supreme Court also identified “several factors that the courts should consider” when applying the privilege to a particular case: (1) “whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production,” id. at 754 (citing United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 147 (3d Cir. 1980), and Criden, 633 F.2d at 357-58); (2) whether the privilege is raised in a civil or criminal case, “as in criminal cases the public need to vindicate crime, or the defendant’s constitutional right to a fair trial, can take precedence over a reporter’s need to maintain confidentiality,” id.; and (3) whether the media is being subpoenaed as a party or non-party witness, as “it should be more difficult to compel production from a non-party witness who has no personal interest in the matter,” id. at 754-55 (citing Riley, 612 F.2d at 716).

Finally, the courthas explained that these “principles and policy considerations . . . must inform the application of the three-part test and, in fact, may warrant relaxation of the test in certain circumstances.” Id. at 755 (quoting Criden, 633 F.2d at 358); see, e.g., McMenamin, 590 A.2d at 811.

To overcome the First Amendment privilege, a party seeking disclosure must establish that the information it seeks is “material, relevant, and necessary.” Glanton, 705 A.2d at 885; seealsoRiley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979) (“[T]he materiality, relevance and necessity of the information sought must be shown.”). A party cannot overcome the privilege by showing the “mere possibility that a media entity possesses relevant information.” Glanton, 705 A.2d at 886. Rather, to overcome a reporter’s First Amendment privilege, the moving party must show that the information it seeks is “crucial.” Id. According to the Third Circuit in Riley, this requirement means that the party seeking the information must show that the information goes “to the heart of the [claim].” Riley, 612 F.2d at 717. In Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), the Pennsylvania Supreme Court stated that it would interpret the term “crucial” “in accordance with the meaning that the Third Circuit has ascribed to it.” Id. at 757 n.12 (citing cases).

2. Material unavailable from other sources

Under the Pennsylvania Shield Law, whether the information is available from other sources is irrelevant to the applicability of the privilege. SeeDavis v. Glanton, 705 A.2d 879, 884-85 (Pa. Super. 1997).

Conversely, a party can overcome the First Amendment privilege by making a “strong showing that [the information desired] cannot be obtained by alternative means.” Glanton, 705 A.2d at 882; see also Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979) (requiring a “strong showing by those seeking to elicit the information that there is no other source for the information requested”). The party seeking disclosure must establish that the reporter’s materials are “the only source” of the information desired and that “it would be futile to seek [the information] elsewhere.” Glanton, 705 A.2d at 885-86; see also United States v. Criden, 633 F.2d 346, 359 (3d Cir. 1980) (moving party “must demonstrate that the only access to the information sought is through the journalist and her sources”); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980) (moving party must “show[] that he is unable to acquire the information from another source that does not enjoy the protection of the privilege”). To this end, courts have required the subpoenaing party to “show that his only practical access to crucial information necessary for the development of the case is through the newsman’s sources,” Riley, 612 F.2d at 717 (internal quotation omitted), and that the only access to the information sought is through the journalist and her sources. Commonwealth v. Bowden, 838 A.2d 740, 755 (Pa. 2003).

The inquiry into whether material is unavailable from other sources is fact sensitive. In Bowden, the Pennsylvania Supreme Court found that the sole alternative source, a criminal defendant on trial for murder, was “not an acceptable source for the information, not only because it is his own credibility that is at issue, but also because his statements, as they appear in the reporters’ notes, are by their very nature unique.” Id. at 756 (quoting Cuthbertson I, 630 F.2d at 148). Consequently, the court held, it was “unnecessary” for the prosecutor “to attempt to seek [the defendant’s] statements elsewhere, as any such effort would have been futile.” Id. On the other hand, in McMenamin v. Tartaglione, the Pennsylvania Commonwealth Court held that the First Amendment privilege barred the plaintiff from compelling a reporter to testify about statements made by a mayoral candidate at a press conference. See 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). The court noted that although the statements may have been “material, relevant, necessary and perhaps crucial,” people other than the reporter could have testified about the candidate’s statements. Id.

a. How exhaustive must search be?

When a reporter asserts the First Amendment privilege, the party seeking disclosure must establish that it has “exhausted other means of obtaining the information.” Riley v. City of Chester, 612 F.2d 708, 717 (3d Cir. 1979). When alternative sources for the information exist, the party must show that it has pursued each of those alternatives. See, e.g., United States v. Criden, 633 F.2d 346, 358 (3d Cir. 1980); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). A party that fails to establish that it has exhausted alternative sources will not overcome the privilege unless it can show that “it would be futile to seek [the information] elsewhere.” Davis v. Glanton, 705 A.2d 879, 885-86 (Pa. Super. 1997). In Bowden, the Pennsylvania Supreme Court ruled that no alternative source existed because there were no other persons present when the reporters spoke with the criminal defendant whose self-defense claim was at issue. Commonwealth v. Bowden, 838 A.2d 740, 756 (Pa. 2003). The court did not require the prosecution to rule out other sources of the statements made by the defendant, reasoning that the statements to the subpoenaed reporters were, “[b]y their very nature, . . . not obtainable from any other source.” Id.

b. What proof of search does a subpoenaing party need to make?

With respect to the First Amendment privilege, the party seeking disclosure should offer evidence that it made attempts to obtain the information from alternative sources, or that such attempts would be futile. SeeDavis v. Glanton, 705 A.2d 879, 885-86 (Pa. Super. 1997). The Pennsylvania courts, however, have not elaborated on the precise quantum of proof a party must offer concerning its search for alternative sources.

c. Source is an eyewitness to a crime

Even where a confidential source is (or may be) an eyewitness to a crime, the Shield Law provides absolute protection against disclosure of confidential source information. In Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law, “protects a newspaper’s source of information from compelled disclosure.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008). It did so even though the source disclosed to the reporter information subject to grand jury secrecy and the communication of that information was alleged to be a crime.

No Pennsylvania court has addressed the protections of the First Amendment privilege in a case in which the source is an eyewitness to a crime.

3. Balancing of interests

Because the Shield Law provides an absolute privilege, there is no balancing of interests.

When a party seeks information protected by the First Amendment privilege, Pennsylvania courts will balance the “rights of reporters under the First Amendment against the interests of those seeking the information the reporters possess.” Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997); accordCommonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003) (“[A] court ‘must balance on one hand the policies which give rise to the privilege and their applicability to the facts at hand against the need for the evidence sought to be obtained in the case at hand.’”) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979)). This balance is assessed through the three-part test. See Bowden, 838 A.2d at 754-55.

4. Subpoena not overbroad or unduly burdensome

In civil lawsuits, a reporter may object to a subpoena or discovery request on the grounds that the subpoena is overly broad or unreasonably burdensome. See Pa. R. Civ. P. 4003.1(a), 4011(b). A reporter who is served with a subpoena can obtain a protective order for “good cause shown” – including if the subpoena is overly broad or unreasonably burdensome. See Pa. R. Civ. P. 4012(a). The protective order may limit the scope of the subpoena or prohibit the discovery completely.

In a grand jury investigation, a reporter can challenge a subpoena if it seeks information that is not relevant to the investigation. A court will enforce the subpoena, however, if the government submits an affidavit stating that the information sought “is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.” Robert Hawthorne, Inc. v. Cty. Investigating Grand Jury, 412 A.2d 556, 560-61 (Pa. 1980) (quoting In re Grand Jury Proceedings, 486 F.2d 85, 93 (3d Cir. 1973)); see alsoIn re June 1979 Allegheny Cty. Investigating Grand Jury, 415 A.2d 73, 78 (Pa. 1980). Generally, grand jury subpoenas will not be quashed on grounds that they would cause an economic burden or are inconvenient. SeeRobert Hawthorne, 412 A.2d at 560, 562.

In criminal cases, a reporter may object to a defendant’s subpoena if it seeks irrelevant information or is overly broad. See Commonwealth v. Mejia-Arias, 734 A.2d 870, 878-79 (Pa. Super. 1999).

6. Material is not cumulative

7. Civil/criminal rules of procedure

In civil lawsuits, a reporter may object to a subpoena on the grounds that the material sought is not “relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party” or the subpoena “would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party.” See Pa. R. Civ. P. 4003.1(a), 4011(b). In such cases, a reporter can obtain a protective order to limit the scope of the subpoena or prohibit the discovery completely. See Pa. R. Civ. P. 4012(a).

A reporter can challenge a grand jury subpoena where it seeks to recover information that is not relevant to the investigation. Robert Hawthorne, Inc. v. Cty. Investigating Grand Jury, 412 A.2d 556, 560-61 (Pa. 1980). Generally, grand jury subpoenas will not be quashed on grounds that they would cause an economic burden or are inconvenient. Id. at 562.

8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

The privilege afforded by the Pennsylvania Shield Law can be waived by the reporter, but not by the source. Such waiver is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963).

There is no Pennsylvania case law directly addressing waiver under the First Amendment reporter’s privilege, but the Third Circuit has held that [t]he privilege belongs to [the media company], not the potential witnesses, and it may be waived only by its holder.” United States v. Criden, 633 F.2d 346, 359 (3d Cir. 1980). Some Pennsylvania courts have held that the privilege protects even information that has been published. See McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). Thus, unlike the Pennsylvania Shield Law, publication does not amount to waiver, although it is possible it might be a factor in considering the privilege’s application.

2. Elements of waiver

a. Disclosure of confidential source's name

Waiver of the Shield Law protections is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963). If a source’s name is published by the journalist in connection with reported information, then the source’s identity is not protected. See Commonwealth v. Bowden, 838 A.2d 740, 749 (Pa. 2003). Publication of a source’s name therefore waives the protection of the privilege – but only to the disclosure of the identity of the source for that particular information. Similarly, if a reporter voluntarily discloses a source’s identity, the Shield Law’s protection is not implicated. See In re Cty. Investigating Grand Jury VIII, 2003, 2005 WL 3985351, at *12 (Lackawanna Cty. C.C.P. Oct. 25, 2005) (noting that Shield Law was not implicated because reporter “voluntarily disclosed the sources for the information contained” in her articles to a special prosecutor).

There is no Pennsylvania case law addressing waiver of the First Amendment reporter’s privilege by disclosure of a confidential source’s name, although the Pennsylvania Supreme Court has echoed the Third Circuit’s guidance that “it is important for courts faced with privilege questions to consider whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003).

b. Disclosure of non-confidential source's name

The Pennsylvania Shield Law does not protect non-confidential source information.

There is no Pennsylvania case law addressing waiver of the First Amendment reporter’s privilege by disclosure of a non-confidential source’s name, although the Pennsylvania Supreme Court has echoed the Third Circuit’s guidance that “it is important for courts faced with privilege questions to consider whether a reporter’s source is confidential, because the lack of a confidential source is a factor that favors production.” Commonwealth v. Bowden, 838 A.2d 740, 754 (Pa. 2003).

d. Other elements

3. Agreement to partially testify act as waiver?

Waiver of the Shield Law protections is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963). Accordingly, if a reporter testifies to limited information, the privilege is deemed waived only as to the information actually disclosed in that testimony and not to the identity of the source. See In re Cty. Investigating Grand Jury VIII, 2003, 2005 WL 3985351, at *12 (Lackawanna Cty. C.C.P. Oct. 25, 2005) (noting that Shield Law was not implicated because reporter “voluntarily disclosed the sources for the information contained” in her articles to a special prosecutor).

There is no Pennsylvania case law addressing waiver of the First Amendment reporter’s privilege by agreement to partially testify.

B. Broadcast materials

Broadcast materials, such as videotapes, must be authenticated if offered as evidence at trial. To authenticate such materials, “a witness who has made the videotape” must identify the objects and people shown in the tape, as well as the time and place the video was made. Pierce v. Unemployment Comp. Bd. of Review, 641 A.2d 727, 728 (Pa. Commw. 1994). The editor or film processor does not need to testify to authenticate a video. Seeid. at 729. Rather, anyone “who can confirm that the representation is accurate as to objects depicted, at the relevant time, is sufficient.” Id.

C. Testimony vs. affidavits

D. Non-compliance remedies

If a media member refuses to comply with a court order to disclose information, the court can impose contempt sanctions. Commonwealth v. Bowden, 838 A.2d 740, 760 (Pa. 2003). The contempt power “is a right inherent in courts and is incidental to the grant of judicial power under Article 5 of [Pennsylvania’s] Constitution.” Commonwealth v. Marcone, 410 A.2d 759, 763 (Pa. 1980). Contempt is classified along two axes: whether it is civil or criminal, and whether it is direct or indirect. Crozer-Chester Med. Ctr. v. Moran, 560 A.2d 133, 136 (Pa. 1989).

Civil contempt is intended to coerce compliance with a court order or, in some circumstances, to compensate someone who has been harmed by noncompliance. Criminal contempt, on the other hand, is intended to punish past failure to obey the court. Bowden, 838 A.2d at 760. Direct contempt occurs when a person disobeys an order in the court’s presence, such as by refusing to testify while in the courtroom. Crozer-Chester, 560 A.2d at 136. Indirect contempt occurs when an order is disobeyed outside the court’s presence, such as by refusing an order to appear. Id. Thus, depending on the location of the conduct and the purpose of the contempt charge, contempt may be civil and direct, civil and indirect, criminal and direct, or criminal and indirect. Id. at 136–137.

Although Pennsylvania has statutes addressing contempt and limiting the penalties a court may impose for contempt, see 42 Pa. Cons. Stat. §§ 4131–4139, the Supreme Court has ruled that those limits are an unconstitutional constraint on courts’ inherent power to enforce their orders. See Commonwealth v. McMullen, 961 A.2d 842, 849–50 (Pa. 2008) (striking down 42 Pa. Cons. Stat. § 4136(b), which limited the penalty for indirect criminal contempt to 15 days’ imprisonment); In re Order Amending Rules 140, 141 & 142 of the Pa. Rules of Criminal Procedure, 2018 Pa. LEXIS 4, at *24 (Pa. 2018) (adopting a rule comment, citing McMullen, that “legislative limitations on a court’s power to sentence for contempt are unconstitutional”); see alsoCommonwealth v. Leonard, 2014 Pa. Super. Unpub. LEXIS 3265, at *24 (Pa. Super. Mar. 24, 2014) (holding that the logic of McMullen also invalidated statutory limits on a court’s contempt powers in §§ 4133 and 4137).

1. Civil contempt

In general, civil contempt citation “is intended to coerce the disobedient party into compliance with the court’s order through incarceration and/or monetary punishment.” Commonwealth v. Bowden, 838 A.2d 740, 761 (Pa. 2003). In some instances, civil contempt also can be used for “compensation that is paid to the party whom the contempt has harmed.” Id.; see, e.g., Schnabel Assocs., Inc. v. Bldg. & Constr. Trades Council, 487 A.2d 1327, 1338 (Pa. Super. Ct. 1985) (ordering a contemnor to pay the costs and attorney’s fees incurred by the other party as a result of the contempt).

Before a trial court may order a sanction to coerce compliance, it must consider a number of factors, including “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” Bowden, 838 A.2d at 761.Before imposing a coercive civil contempt fine, the court must “consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.” Id. The failure of a trial court to consider the required factors before imposing contempt is an abuse of discretion and may be overturned on appeal. Id. at 762. The court may not impose a coercive civil contempt sanction where compliance with the court’s order is impossible. In re Martorano, 346 A.2d 22, 29 (Pa. 1975). In determining what sanction to impose, “a court must exercise the least possible power suitable to achieve the end proposed.” Commonwealth v. CromwellTwp., 32 A.3d 639, 653 (Pa. 2011) (citing Spallone v. United States, 493 U.S. 265, 276 (1990)).

Where the contempt is direct, such as where a reporter refuses to disclose information in open court after having been heard on whether the reporter’s privilege or Shield Law protects the information, the reporter may be subject to a summary finding of contempt for disobeying a court order in the court’s presence – that is, the person can be found to be in contempt on the spot, with no further inquiry by the court. 42 Pa.Cons. Stat. § 4132; McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. 1998); see also Crozer-Chester Med. Ctr. v. Moran, 560 A.2d 133, 136 (Pa. 1989) (“It is summary because its proofs are evident; the authority of and orderly process of the court are directly confronted upon its open record and the evidence is plain and usually self-accusing.”).

If the contempt is indirect, however, a court can hold a person in civil contempt only after a multi-step, multi-hearing process: “1) a rule to show cause why an attachment should not issue, 2) an answer and hearing, 3) rule absolute (arrest), 4) a hearing on contempt citation, and 5) an adjudication of contempt.” McMahon, 706 A.2d at 356 (citation omitted). These are not rigid steps, and a civil contempt order may be upheld if the court followed these procedures in substance, if not in exact form. Id. at 356–57.

a. Fines

A person held in civil contempt can be fined. It is unclear what, if any, limitation there is on the amount of a fine a court may impose to coerce a reporter to comply with its orders. In Bowden, a Philadelphia trial court held two reporters in contempt and imposed a fine of $100 per minute during part of the trial to compel them to testify about their jailhouse interviews with a defendant facing murder charges. The resulting fine was $40,000 per reporter. 838 A.2d at 745. On appeal, the Superior Court remanded the case for reconsideration of the amount of the fine, finding the “steep sanction [an] unprecedented” abuse of discretion. Id. On further appeal, the Pennsylvania Supreme Court affirmed the Superior Court’s ruling, but on different grounds. Id. at 760. The Supreme Court held that the process by which the trial court determined its penalty – suggesting $1000 an hour moments before drastically increasing the sanction to $100 a minute, without explanation – was deemed impermissibly capricious. Id. at 764 n.20. Specifically, the trial court expressed “a significant degree of skepticism about the effectiveness of its sanction” and did not consider the “‘financial resources and the consequent seriousness of the burden” to the parties paying the fine. Id. at 763-64 (citation omitted).

b. Jail

The court has the power to jail a person for civil contempt to coerce compliance with an order, and there is no limit to the jail sentence a court may impose. SeeCommonwealth v. McMullen, 961 A.2d 842, 849-50 (Pa. 2008). The court must release the contemnor, however, upon an indication that she intends to obey the court order: a person jailed for civil contempt “has the key to the jail house.” Crozer-Chester, 560 A.2d at 137. A court may not order imprisonment to coerce compliance with an order if imprisonment would make compliance impossible. Wetzel v. Suchanek, 541 A.2d 761, 763 (Pa. Super. 1988).

2. Criminal contempt

Criminal contempt “is a finding of a specific offense for which a sanction is imposed that does not seek compliance but is a specific punishment for an act done.” Crozer-Chester Med. Ctr. v. Moran, 560 A.2d 133, 136 (Pa. 1989). Because criminal contempt is a crime, it “trigger[s] the essential procedural safeguards that attend criminal proceedings generally.” Commonwealth v. Ashton (In re Donohue), 824 A.2d 1198, 1203 (Pa. Super. 2003).

“To sustain a conviction for direct criminal contempt . . . there must be proof beyond a reasonable doubt: (1) of misconduct, (2) in the presence of the court, (3) committed with the intent to obstruct the proceedings, (4) that obstructs the administration of justice.” Commonwealth v. Robinson, 166 A.3d 1272, 1277 (Pa. Super. 2017) (citation omitted). In a case of direct criminal contempt – such as where a person refuses to comply with a court order to disclose information while in court – the court may issue a summary punishment without further process due. 42 Pa. Cons. Stat. § 4132; Commonwealth v. Moody, 125 A.3d 1, 8–9 (Pa. 2015). Due process does require that a criminal contemnor be given notice that his conduct was criminal before he can be punished, but a verbal warning from the court suffices for this purpose. Commonwealth v. Kolansky, 800 A.2d 937, 942 n.5 (Pa. Super. Ct. 2002). Summary punishments for direct criminal contempt are permissible only in cases of “flagrant defiance” that threaten the court’s authority. Moody, 125 A.3d at 9. They cannot be used to punish minor misconduct. Id.

To prove indirect criminal contempt, the court must establish that its “order was definite, clear, specific, and leaving no doubt in the person to whom it was addressed of the conduct prohibited; the contemnor had notice of the order; the act constituting the violation was volitional; and the contemnor acted with wrongful intent.” Commonwealth v. McMullen, 961 A.2d 842, 849 (Pa. 2008). A jury trial is not required if the prison term contemplated is less than six months. Id. at 847.

The punishments available to courts using their criminal contempt powers cannot be limited by statute. McMullen,961 A.2d at 849-50. Court rules, however, limit the punishments that magisterial and municipal courts can impose for criminal contempt. See Pa. R. Crim. P. 140.

The court has the inherent power to jail a person for contempt, and that power cannot be limited by statute. SeeCommonwealth v. McMullen, 961 A.2d 842, 849-50 (Pa. 2008)(striking down 42 Pa. Cons. Stat. § 4136(b), which unconstitutionally constrained courts’ inherent contempt powers by limiting indirect criminal sentence to 15 days). Court rules limit the punishments that magisterial and municipal courts can impose for criminal contempt. Pa. R. Crim. P. 140. Such courts cannot impose a sentence greater than ten days for failure to pay the fine after disobeying a subpoena, thirty days for direct contempt or failure to compensate a victim, or ninety days for failure to pay costs and fines according to an installment payment order. Id. at (A)(1), (B)(3).

3. Other remedies

If a reporter or media entity is a party to a civil case, no adverse inference may be drawn at trial from the media’s reliance on the Shield Law, but neither can an inference of reliability or accuracy of the information be drawn from the existence of an unidentified source. Sprague v. Walter, 543 A.2d 1078, 1086 (Pa. 1988).

VIII. Appealing

A. Timing

1. Interlocutory appeals

The media can appeal immediately, as a matter of right, from a trial court order denying a motion to quash under the collateral order doctrine. The collateral order doctrine applies where (1) the order to be appealed is separable and collateral to the main case; (2) the order impacts rights that are too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa. R. App. P. 313; Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978). The collateral order doctrine is particularly applicable to privilege disputes. See, e.g., Commonwealth v. Flor, 136 A.3d 150, 155 (Pa. 2016) (“As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313.”); Ben v. Schwartz, 729 A.2d 547, 550 (Pa. 1999) (allowing appeal from order requiring disclosure of files subject to executive and statutory privilege); Hutchison v. Luddy, 606 A.2d 905, 906 (Pa. Super. 1992) (allowing appeal from order requiring production of documents involving canon law privilege); Commonwealth v. Miller, 593 A.2d 1308, 1309-10 (Pa. Super. 1991) (allowing appeal from order requiring production of statutorily-privileged documents); Commonwealth v. Williams, 86 A.3d 771, 780 (Pa. 2014) (“This Court has moved towards a category-wide exception to discovery orders that are alleged to violate a protected privilege, such as the attorney-client privilege or the work product doctrine.”). In Castellani v. Scranton Times, L.P., 956 A.2d 937, 943 (Pa. 2008), the Pennsylvania Supreme Court held that an order in a defamation case compelling a media defendant to disclose information subject to the Pennsylvania Shield Law was immediately appealable as a collateral order.

In grand jury proceedings, however, the collateral order doctrine is unavailable, thereby forcing the subpoenaed party to suffer contempt in order to be able to appeal. As the Supreme Court explained in In re the Twenty-Fourth Statewide Investigating Grand Jury, “the determination of whether a particular order is separable and collateral from a grand jury proceeding is a difficult, if not impossible, undertaking” because grand jury secrecy leaves the court “with no record to use in determining whether or not the contested order is collateral to the proceeding.” 907 A.2d 505, 510 (Pa. 2006) (citing In re Grand Jury Subpoena, 190 F.3d 375, 384 (5th Cir. 1999)). As a result, “[o]ne seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings.” Id. In that case, the court quashed an appeal by a newspaper that had received a grand jury subpoena because it had chosen to provide the subpoenaed material to the prosecutor in a “compromise arrangement” approved by the judge supervising the grand jury to gain a stay pending appeal. Id. at 510-11.

If necessary, the media may also petition the appellate court for permission to appeal under the rules governing interlocutory orders if (1) an appeal is not allowed under the collateral order doctrine, and (2) the trial court certifies the question for interlocutory appeal. 42 Pa. Cons. Stat. § 702; Pa. R. App. P. 1301 et seq. Such an appeal, however by its very nature, is not a matter of right. Certification depends on whether the order at issue “involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter.” In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d at 510 (citing Section 702(b)). In that case, the Pennsylvania Supreme Court ruled that the denial of certification by the judge supervising the grand jury was not an abuse of discretion because, with respect to one subpoena issued to the newspaper, the newspaper was held to be in contempt of court so it could pursue “the traditional avenue for securing appellate review,” and, with respect to the other subpoena, it had no grounds for appeal, as it was not in contempt of court. Id.

Interlocutory appeals and appeals as of right generally must be filed within 30 days of the entry of the order appealed. Pa. R. A. P. 341, 903, 1311.

A petition for review of an order in connection with an investigating grand jury must be filed within 10 days of the order. See Pa. R. A. P. 1512(b)(3), 3331(a)(3).

2. Expedited appeals

If an expedited or emergency appeal is sought, the media can expedite the entry of an appealable order in writing, as required to start an appeal by filing a praecipe under Pa. R. A. P. 301(e). If a party would like to expedite an appeal, it can file an application with the appellate court showing “good cause.” Pa. R. A. P. 105(a).

B. Procedure

1. To whom is the appeal made?

Appeals from the courts of common pleas – including appeals from rulings compelling a reporter to comply with a subpoena notwithstanding privilege objections – are generally taken to the Superior Court, although certain matters must be appealed to the Commonwealth Court or the Supreme Court, as provided by statute. See, e.g., 42 Pa. Cons. Stat. §§ 722, 742, 762. Appeals from the Superior Court and the Commonwealth Court are taken to the Supreme Court. See, e.g., 42 Pa. Cons. Stat. §§ 723, 724. Appeals from rulings by state governmental agencies typically are taken to the Commonwealth Court, although there are agencies whose decisions are appealed directly to the Supreme Court. See, e.g., 42 Pa. Cons. Stat. §§ 725, 763. Appeals relating to grand juries are taken to the Supreme Court. Pa. R. A. P. 3331.

Appeals to the Pennsylvania Supreme Court are generally by allowance only. Pa. R. A. P. 1111 et seq. In exceptional circumstances, the Supreme Court can exercise extraordinary jurisdiction over a matter using its “King’s Bench” powers “in order to conserve judicial resources . . . and provide guidance to the lower courts on a question that is likely to recur.” Commonwealth v. Martorano, 634 A.2d 1063, 1067 n.6 (Pa. 1993) (citing Commonwealth v. Lang, 537 A.2d 1361 (Pa. 1988)); see also 42 Pa. Cons. Stat. § 502; 42 Pa. Cons. Stat. § 726 (“Supreme Court may, on its own motion or upon petition of any party, in any matter . . . involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof . . . .”); Pa. R. App. P. 3309 (addressing applications for extraordinary relief). The courts of appeals also maintain the power to issue writs of prohibition or mandamus where a lower court wrongly exercises or refuses to exercise its discretion within the limits of the law. 42 Pa. Cons. Stat. §§ 721, 741, 761.

2. Stays pending appeal

In order to avoid a finding of contempt, the media must seek a stay pending appeal of an order compelling the disclosure of information. The stay must first be requested in the lower court, unless impracticable. Pa. R. App. P. 1732.

In addition, an order providing monetary relief, such as an order imposing a fine for contempt of court, is automatically stayed by filing security, cash or bond, in the amount of 120% of the amount ordered by the court below. Pa. R. App. P. 1731, 1735.

In Commonwealth v Bowden, 838 A.2d 740, 744 (Pa. 2003), two reporters, having been ordered to testify, sought a stay from the trial court, which was denied. The trial proceeded while they sought a stay from the Superior Court. This was initially granted, but subsequently dissolved. Finally, they sought a stay from the Supreme Court, which similarly issued a temporary stay order that was ultimately dissolved. Id.

3. Nature of appeal

The media can appeal immediately, as a matter of right, from a trial court order denying a motion to quash under the collateral order doctrine. The collateral order doctrine applies where (1) the order to be appealed is separable and collateral to the main case; (2) the order impacts rights that are too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost. Pa. R. App. P. 313; Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978); see also Commonwealth v. Flor, 136 A.3d 150, 155 (2016) (“As we established in Harris, discovery orders rejecting claims of privilege and requiring disclosure constitute collateral orders that are immediately appealable under Rule 313.”). In Castellani v. Scranton Times, L.P., 956 A.2d 937, 943 (Pa. 2008), the Supreme Court held that an order in a defamation case compelling a media defendant to disclose information subject to the Pennsylvania Shield Law was immediately appealable as a collateral order. In such cases, the question presented is whether the information sought is protected by the privilege.

In grand jury proceedings, however, the collateral order doctrine is unavailable, thereby forcing the subpoenaed party to suffer contempt in order to be able to appeal. As the Supreme Court explained in In re the Twenty-Fourth Statewide Investigating Grand Jury, “the determination of whether a particular order is separable and collateral from a grand jury proceeding is a difficult, if not impossible, undertaking” because grand jury secrecy leaves the court “with no record to use in determining whether or not the contested order is collateral to the proceeding.” 907 A.2d 505, 510 (Pa. 2006) (citing In re Grand Jury Subpoena, 190 F.3d 375, 384 (5th Cir. 1999)). As a result, “[o]ne seeking to challenge the propriety of a grand jury subpoena must generally choose between complying with the subpoena and litigating the validity through contempt proceedings.” Id. In that case, the court quashed an appeal by a newspaper that had received a grand jury subpoena because it had chosen to provide the subpoenaed material to the prosecutor in a “compromise arrangement” approved by the judge supervising the grand jury to gain a stay pending appeal. Id. at 510-11.

When a reporter is held in contempt, the appeal can challenge the compelled disclosure, the finding of contempt, and the contempt sanction. See, e.g., Commonwealth v Bowden, 838 A.2d 740 (Pa. 2003).

In Castellani, the Pennsylvania Supreme Court reaffirmed that the Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. The court affirmed the Superior Court’s decision overruling the trial court order directing the newspaper to disclose the challenged information, conducting a de novo review and holding that the Shield Law did not contain a crime-fraud exception.

On appeal from a finding of contempt, the appellate court may reverse a contempt sanction upon finding that the trial court abused its discretion or committed an error of law. Bowden, 838 A.2d at 761-62; Stambaugh v. Reed Twp., 510 A.2d 1289 (Pa. Commw. 1986). “Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Bowden, 838 A.2d at 762.

5. Addressing mootness questions

In general, an appeal from an order granting a motion to compel or denying a motion to quash is not moot even when the underlying case is concluded because such an order is capable of repetition yet evading review. Kurtzman v. Hankin, 714 A.2d 450, 452 (Pa. Super. 1998); Commonwealth v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983).

For a reporter to appeal an order issued in a grand jury proceeding, there must be a contempt order entered against the reporter. Compliance with a grand jury subpoena, therefore, precludes the possibility of an appeal. In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505, 509-10 (Pa. 2006).

6. Relief

An appellate court can reverse an order granting a motion to compel or denying a motion to quash and quash the subpoena. Where the trial court imposed a contempt sanction, the appellate court can reverse the finding of contempt and imposition of the sanction or can remand to the trial court for consideration of the proper factors for contempt. SeeCommonwealth v. Bowden, 838 A.2d 740, 765 (Pa. 2003).

If a witness is held in contempt and incarcerated, whether for civil or criminal contempt, the witness’s counsel should consider filing a writ of habeas corpus seeking release on the basis that the witness has been jailed in violation of the reporter’s constitutional rights.

IX. Other issues

A. Newsroom searches

There is no Pennsylvania law addressing the impact of the federal Privacy Protection Act (42 U.S.C. § 2000aa) on newsroom searches or other seizures from the media.

In In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006), a newspaper company’s computer workstations and hard drives were subpoenaed by the Attorney General’s Office in the course of a statewide grand jury investigation. Denying the paper’s motion to quash, the trial court permitted the Attorney General to search the hard drives’ internet history and cached content, and further imposed a sanction of $1,000 per day when the paper refused to comply with the trial court’s order. On appeal, the newspaper argued, among other things, that (1) the subpoena violated the First Amendment Privacy Protection Act, 40 U.S.C. §§ 2000aa-2000aa-12; (2) the subpoena sought confidential source information on the hard drives, which was absolutely protected from disclosure under the Pennsylvania Shield Law; and (3) the subpoena violated the First Amendment reporter’s privilege. Without specifically addressing any of these arguments, the Pennsylvania Supreme Court reversed the trial court’s order based on “a careful balancing of the respective interests involved.” Id. at 514. Noting the “potential chilling effect” of the trial court’s order, the court held that it was overbroad, that “measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth,” and that “this particular method of disclosure is unduly intrusive.” Id. at 513-14. As the court noted, the Attorney General’s office had, in effect, demanded that the “‘filing cabinets’ of the newspapers [be] transferred to the custody and control of the executive branch of the government.” Id. at 514. The court said that “[w]e expressly do not foreclose . . . the utilization by the supervising judge of a neutral, court-appointed expert to accomplish the forensic analysis and report specific, relevant results.” Id. at 514, n.5.It furthernoted, ignoring the provisions of the Federal Privacy Protection Act, that “any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause.” Id. at 514.